Kosovo’s Independence And the Serbia: A Case for Self Determination or Territorial Integrity?

On December 1st, Serbia began its statements in the ICJ while seeking its advisory opinion on Kosovo’s declaration of independence in light of Resolution 1244 of the UN General Assembly. The first paragraph of the Serbian oral arguments begins thus,

“The General Assembly of the United Nations has turned to the Court to request an advisory opinion of it on the accordance with international law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo. The question is one of major importance for the United Nations, and for the entire international legal order, since the Unilateral Declaration of Independence is nothing but an attempt to put an end to the international legal régime the Security Council established for Kosovo in resolution 1244 in 1999.”

Chris Borgen is reviewing the Kosovo situation on Opinio Juris; however, his analysis will be restricted to the International Law Paradigm of territorial integrity and sovereignty. Here I propose to give a perspective of Self Determination in accordance with customary international law.

Now the concept of Self Determination is a very delicate, or rather sensitive one. As Wolfgang Danspeckgruber puts it: “No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.” While international law has recognised this right, it has also pledge to uphold the principle of territorial integrity; these two concepts thus end up making the right of self determination more a question of practice.., and to a very great extent of politics.

I say politics with special reference to the Kosovan Case post the Ahtisari Draft presented to the UN General Assembly in February 2006, which proposed the eventual independence of Kosovo; the Draft was finally vetoed by Russia owing to concerns that such a resolution would undermine the principle of State Sovereignty while all other Security Council members were in clear anticipation of Kosovo’s freedom.

Similarly the island nation of Taiwan, off the coast of mainland China, is accepted as a global trading partner – the United States alone has 140 trade agreements with the Taiwanese – but not as an independent country. Few countries are willing to challenge Beijing’s “one-China” policy, which denies any province the right to secede and sees Taiwan as its 23rd province.

Meanwhile, most of the world refuses to deal with the Turkish Republic of Northern Cyprus, which has been punished with an economic embargo since 1973, when Turkish troops invaded Cyprus and permanently occupied the north, creating a Turkish-dominated de facto state there. Somaliland – which established a de facto state in northwestern Somalia in 1991 after the government in Mogadishu collapsed – has been largely ignored by the world community despite being a relative beacon of stability in the otherwise unstable horn of Africa.

After declaring its independence in 2008, Kosovo has been recognised as the Republic of Kosovo by 63 UN Member States and the Republic of China. Kosovo’s declaration/recognition as a nation State however is in contradiction with Resolution 1244 of the UN General Assembly.

The peculiar problem posed then is the issue as to how significant is the claim to ‘Self Determination’ and what ground can Territorial Integrity and Sovereignty hold as regards opposing Kosovo’s independence. I suppose this would be the basis of issues the ICJ will seek to settle in its advisory opinion to the General Assembly.